Regulators and law don't protect UK net neutrality

There is no legal barrier in the UK to internet service providers (ISPs) blocking content from website operators who do not pay them. Neither consumer law nor telecoms regulation protects ISP subscribers, technology law podcast OUT-LAW Radio has revealed.

BT last week said that it wanted the operators of web video services to pay it for the cost of maintaining networks powerful enough to handle online video. It said that the BBC and Google should pay it because of the popularity of their iPlayer and YouTube services.

Other major ISPs are said also to be concerned at the infrastructure costs involved in ensuring that subscribers can watch video content, and the remarks raise the prospect of ISPs slowing or even blocking subscribers' access to content from operators which do not pay them.

OUT-LAW Radio investigated whether there was any legal barrier in the UK to an ISP slowing or blocking access to video services such as the iPlayer and found that there are none. As long as an ISP explains its actions in its fair use policies or statements of terms and conditions it is permitted to block whatever it likes.

A spokeswoman for telecoms regulator Ofcom said that ISPs all had to abide by its General Conditions, but that these did not specify that all internet traffic had to be treated equally.

She said that there is a voluntary Code of Practice governing the advertising of broadband speeds, but that this only demands that ISPs inform customers of any traffic shaping or blocking that it engages in.

She said that Ofcom had previously considered the issue of whether such blocking or shaping for reasons other than network management might be unfair to consumers, but had not come to any conclusion.

A lawyer at consumer protection body Which?'s legal division also said that consumers would only have grounds for complaint if a connection was interfered with without notification.

"The Supply of Goods and Services Act relates to their broadband contract so basically there is an obligation there to provide the service that was previously promised and as described," said Stephen McGlade of Which? Legal Services. "If there is any situation where the internet connection is reduced in some way, obviously one would have to look at the service contract, at the terms and conditions, to see what it says in relation to that service agreement."

"They could challenge it if they are deprived of being able to look at this legal content, they could request an alteration to the service and should be looking for some compensation," he said, referring only to situations where an ISP does not give notice of the change.

Major ISPs, though, are likely to put the change into their terms and conditions. This would leave consumers no course of action other than to accept the service limitation or leave the ISP.

BT declined to comment, only saying that an executive's comments to the Financial Times newspaper last week accurately reflected its position.

“We can’t give the content providers a completely free ride and continue to give customers the [service] they want at the price they expect,” BT's managing director of the consumer business John Petter told the paper.

A BBC spokesman told OUT-LAW Radio that it did not believe that it should pay ISPs for the delivery of its content, and that the iPlayer "only makes up a small percentage of total internet traffic in the UK".

Which?'s McGlade said that a changed contract might lead to action under the Unfair Terms in Consumer Contracts Regulations, which say that any contract term which is unfair is unenforceable.

Technology law expert Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that it would only be unfair under those regulations if consumers were forced to stay with that ISP and accept the terms, however.

"If people have the opportunity to just walk away and join another provider I doubt there will be an issue," he said.